2nd Amended & Restated Voting Trust Agreement

EXHIBIT 10.5


SECOND AMENDED AND RESTATED
VOTING TRUST AGREEMENT
REGARDING SHARES ISSUED TO THE BIANCO
FAMILY 1991 TRUST


This SECOND AMENDED AND RESTATED VOTING TRUST AGREEMENT ("AGREEMENT") is entered into effective as of December 1, 1996 (the "EXECUTION DATE") by and among David J. Shimmon (the "SHIMMON"), the Bianco Family 1991 Trust dated February 1, 1991 or any other trust created by the Bianco Family 1991 Trust dated February 1, 1991, for the benefit of William A. Bianco, Jr. and/or Marie R. Bianco, including, but not limited to, the survivor trust, the non-exempt marital trust or the marital trust (collectively referred to as the "BIANCO TRUST") and William A. Bianco, Jr. ("BIANCO").


RECITALS


A. BIANCO, the BIANCO TRUST, SHIMMON and others entered into a Contingent Voting Trust Agreement on June 30, 1994 and a First Amended and Restated Contingent Voting Trust Agreement Regarding Shares Issued To The Bianco Family 1991 Trust effective as of April 1, 1996 (collectively, the "ORIGINAL AGREEMENT").


B. The KSI Group, Inc., a Delaware corporation (the "COMPANY") is contemplating the effectuation of a "QUALIFIED PUBLIC OFFERING" as defined in the Certificate of Incorporation of the CORPORATION effective as of the EXECUTION DATE.


C. Section 8.7 of the ORIGINAL AGREEMENT grants "VOTING TRUSTEE" and the "BENEFICIAL OWNER" the right to amend the ORIGINAL AGREEMENT.


D. Currently, SHIMMON is the "VOTING TRUSTEE" and the BIANCO TRUST is the "BENEFICIAL OWNER" as defined in the ORIGINAL AGREEMENT.


E. Effective as of the closing of the QUALIFIED PUBLIC OFFERING (the "CLOSING"), SHIMMON and The BIANCO TRUST desire to amend the ORIGINAL AGREEMENT as set forth below.


THE PARTIES AGREE AS FOLLOWS:


1. Effectiveness of the AGREEMENT. This AGREEMENT shall become
------------------------------ effective on the earlier of (the "EFFECTIVE DATE"): (a) the CLOSING, or (b) the date BIANCO ceases to be employed by the COMPANY or an affiliate thereof for any reason ("BIANCO TERMINATION").


2. VOTING TRUSTEES. Subject to Section 7.7 below and the division of
--------------- responsibilities set forth in this AGREEMENT, initially BIANCO and SHIMMON shall be the voting trustees (the "VOTING TRUSTEES"). Upon the occurrence of a BIANCO TERMINATION, BIANCO shall cease to be a TRUSTEE. (See Section 7.2 regarding termination of employment of SHIMMON and termination of the VOTING TRUST.)


3. DEPOSIT AND TRANSFER OF SHARES--ISSUANCE AND TRANSFER OF VOTING TRUST
--------------------------------------------------------------------- CERTIFICATES. - ------------


3.1 Deposit of Shares. On the EFFECTIVE DATE, the BIANCO TRUST shall
----------------- deposit with the Doty & Sundheim, A Professional Corporation ("ESCROW HOLDER") the certificates for all shares of the COMPANY which it owns and are not being sold pursuant to the QUALIFIED PUBLIC OFFERING (the "BIANCO TRUST CERTIFICATES"). In addition, the BIANCO TRUST shall deposit with the ESCROW HOLDER an executed assignment separate from certificate in the form attached as
Exhibit 3.1 and such additional documents as may be necessary to enable the - ----------- COMPANY to cause the BIANCO TRUST CERTIFICATES to be transferred to the name of the VOTING TRUSTEES. In the event the BIANCO TRUST is issued any additional shares by the COMPANY prior to or during the term of this AGREEMENT and at such time SHIMMON is (a) employed by the COMPANY and (b) a shareholder of the COMPANY, such additional shares shall be deposited as set forth above and shall be included in the definition of the"BIANCO TRUST CERTIFICATES".


3.2 Transfer of VOTING TRUST CERTIFICATES.
-------------------------------------


a. On the EFFECTIVE DATE all the BIANCO TRUST CERTIFICATES delivered to the ESCROW HOLDER shall be surrendered by the ESCROW HOLDER to the COMPANY and canceled. New share


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certificates shall be issued in the name of the VOTING TRUSTEES. The new share certificates shall state that they are issued pursuant to this AGREEMENT. This fact shall also be noted in the entry of ownership of the shares by the VOTING TRUSTEES in the stock transfer records of the COMPANY. (The certificates issued to the VOTING TRUSTEES under this Section hereafter shall be referred to as the "VOTING TRUST CERTIFICATES".)


b. At all times during the term of this AGREEMENT, a proposed transfer of any of the VOTING TRUST CERTIFICATES shall require the consent of the BIANCO TRUST and SHIMMON.


3.3 Rights of BENEFICIAL OWNER. Notwithstanding the provisions of
-------------------------- Section 4.1 below, the BIANCO TRUST or the beneficial successor in interest (collectively hereafter referred to as the "BENEFICIAL OWNER") shall have the exclusive right to make the decisions required of the VOTING TRUST under (a) the Hoover Rights Agreement dated April 1, 1996, (b) the Registration Rights Agreement dated April 1, 1996 and (c) amendments to the above agreements.


3.4 BENEFICIAL CERTIFICATES. The VOTING TRUSTEES shall hold the
----------------------- VOTING TRUST CERTIFICATES subject to the terms of this AGREEMENT. The COMPANY shall thereupon issue and deliver to the BIANCO TRUST certificates representing the BIANCO TRUST's beneficial interest in the COMPANY. The voting trust beneficial certificates shall be in substantially the form of Exhibit 3.4
----------- attached hereto (the "BENEFICIAL CERTIFICATES").


3.5 Fractional BENEFICIAL CERTIFICATES. In the event the interest in
---------------------------------- this VOTING TRUST which is owned by any holder cannot be fully represented by whole BENEFICIAL CERTIFICATES, the VOTING TRUSTEES may issue fractional share certificates, scrip, or other evidence of ownership of the fractional part of one BENEFICIAL CERTIFICATE which in their discretion properly indicates ownership of the fractional interest represented thereby. In the event of such issue, the fractional interest shall, under no circumstances, have any greater rights nor lesser liabilities than any other BENEFICIAL CERTIFICATE provided for herein.


3.6 Transfer of BENEFICIAL CERTIFICATES. The BENEFICIAL CERTIFICATES
----------------------------------- shall be transferable only as provided in (a) the BENEFICIAL CERTIFICATES and (b) this AGREEMENT and upon payment of any charges in effect at the time of transfer. All transfers shall be recorded in accordance with Section 6.2 below. Any transfer made of any BENEFICIAL CERTIFICATE shall vest in the transferee all rights of the transferor and shall subject the transferee to the same limitations as those imposed on the transferor by the terms of the BENEFICIAL CERTIFICATE so transferred and this AGREEMENT. Upon such transfer the VOTING TRUSTEES shall deliver a BENEFICIAL CERTIFICATE or CERTIFICATES to the transferee for the number of shares represented by the BENEFICIAL CERTIFICATE so transferred.


3.7 Proof of Ownership. The VOTING TRUSTEES shall not be required to
------------------ recognize any transfer of a BENEFICIAL CERTIFICATE not made in accordance with the provisions hereof unless the person or persons claiming such ownership shall have produced indicia of title satisfactory to the VOTING TRUSTEES, and shall have deposited with the VOTING TRUSTEES indemnity satisfactory to him.


3.8 Holder of BENEFICIAL CERTIFICATE as Owner. The VOTING TRUSTEES
----------------------------------------- may treat the registered holder, for the time being, of each BENEFICIAL CERTIFICATE (or when presented duly endorsed in blank for transfer, the bearer thereof) as the absolute owner and holder thereof and of all the rights and interests represented thereby for all purposes whatsoever. The VOTING TRUSTEES shall not be bound or affected by any notice to the contrary.


3.9 Replacement of BENEFICIAL CERTIFICATE. If a BENEFICIAL
------------------------------------- CERTIFICATE is lost, stolen, mutilated, or destroyed, the VOTING TRUSTEES, in their discretion, may issue a duplicate of the BENEFICIAL CERTIFICATE upon receipt of (a) evidence of such fact and (b) indemnification satisfactory to him.


4. VOTING AND ACTION BY VOTING TRUSTEES.
------------------------------------


4.1 Voting of VOTING TRUST CERTIFICATES.
-----------------------------------


a. General Rule. Subject to Sections 3.2.b, 3.3 and 4.1.b, so long as the VOTING TRUSTEES shall hold VOTING TRUST CERTIFICATES deposited pursuant to the provisions of this AGREEMENT, they shall possess and in their unrestricted discretion shall be entitled to exercise in person or by their attorneys-in-fact or proxies, all rights and powers of absolute owners and holders of the VOTING TRUST CERTIFICATES, including the full and unqualified right to vote, assent or consent with respect thereto and to take part in and consent to any corporate or shareholders' action of any kind whatsoever. No other person shall have any voting rights in respect to the VOTING TRUST CERTIFICATES so long as this AGREEMENT is in effect and such shares are registered in the name of the VOTING TRUSTEES. The right of the VOTING TRUSTEES to vote, assent, or consent shall include the right to vote at any election of directors and in favor of or


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in opposition to any resolution or the issuance or creation of additional securities of the COMPANY, or any action of any character whatsoever which may be presented at any meeting or require the consent of shareholders of the COMPANY.


b. Special Rules. Prior to a BIANCO TERMINATION and except as
------------- provided in Section 3.2.b above or required by law, BIANCO, acting as TRUSTEE, shall have the exclusive right to act on behalf of the VOTING TRUST on all matters identified in Section 4.1.a above. (After a BIANCO TERMINATION, SHIMMON shall be the sole VOTING TRUSTEE. See Section 2 above.)


4.2 Voting in Interest of COMPANY. In voting the VOTING TRUST
----------------------------- CERTIFICATES or in doing any act in respect of the control or management of the COMPANY or its affairs, as holder of stock deposited hereunder, the VOTING TRUSTEES shall exercise their best judgment in the interest of the COMPANY to the end that its affairs shall be properly managed.


4.3 VOTING TRUSTEES's Relationship With COMPANY. The VOTING TRUSTEES
------------------------------------------- or any firm or corporation of which they may be a member, agent, or employee, or any corporation, trust, or association of which they may be a trustee, stockholder, director, officer, agent, or employee, may contract with or be or become pecuniarily interested, directly or indirectly, in any matter or transaction to whic ...